Latest update May 31st, 2023 3:04 PM
Mar 29, 2023 Features / Columnists, Peeping Tom
Kaieteur News – Years ago, a young teenage schoolchild went to extra lessons after school. Led by a ringleader, a group of students from another scho0ol began to taunt him. At first the young teenager did nothing but after a while the taunts intensified and the young teenager flew into a rage, went and got a knife, crossed over to where the group was and fatally stabbed the ringleader.
He was charged with murder. In court his lawyer tried his best to argue self-defence, claiming that the teenager was provoked. But a jury found him guilty, and it was held that by going over to the other side he had indicated an intention not to defend himself but exhibited an intention to harm the ringleader. He got a fairly lengthy prison sentence.
It was not so much that he armed himself with a weapon that caused his claim of self-defence to falter. It was the fact that he turned from victim to aggressor, from being provoked to being the attacker, which was the straw that led to his defence of self-defence collapsing.
In assessing whether there is justification to claim self-defence, one should ask four fundamental questions. The first of these is whether the person feels that he or she is being threatened with or is being assaulted. It does not matter if there is an actual assault but rather whether the person feels that he or she is being either so assaulted or threatened with the use of illegal force. If, for example, a person comes to your home and advances to you with a piece of wood in his hands, then it would be reasonable to infer that you are under threat of the use of force and that force is unlawful.
In this regard, self defence implies that the person must believe that he or she is in imminent or immediate danger or harm. And that only through the use of force can one repel the illegal attack.
If on the other hand, the person claiming self-defence armed himself or herself with a weapon it needs to be determined whether he or she did so in order to defend themselves. Or if the intention was to attack the other person. It has been argued that self defence, as the name implies, is usually defensive in nature and not offensive or pre-meditated.
The second question to be asked is whether the person claiming self defence had reasonable grounds for believing that he or she would suffer grievous bodily harm or even death as a result of the attack or threat of attacks. Reasonableness in this instance would have to take account of the context of the alleged attack. If for example, an infant comes waving a feather at a teenager, the latter can hardly be said to be under grievous threat of harm.
The third question which needs to be asked is that the accused must have believed that there was no other way to defend himself or herself except through inflicting serious harm to the attacker. So the key question here is whether the degree of force was necessary in defending oneself or if some other means could have been successfully deployed in protecting oneself.
This question revolves round the issue of whether the action or actions upon which a defence of self defence is based was necessary. As has been said, “It is both good law and good sense that a man or woman who is attacked may defend themselves. It is good law and good sense that he or she may only do what is necessary.”
In other words, every person can use reasonable force to defend himself or herself but the force can only be justifiably to the extent that it was necessary for the person’s protection. The person claiming self defence should be able to demonstrate that there was no means of retreat or to escape his or her attacker and defence was his or her only shield.
The fourth question concerns provocation. Here it is necessary to determine whether the actions that led to the attack were actually provoked or if the defendant himself or herself induced such provocation.
And self defence certainly does not create a right to attack anyone. Nor can it be used to cover-up an intended crime. If for example you go to kill someone and the person resists, it would be difficult for you to claim that you were forced to harm the person resisting because you acted in self defence.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)
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